September 2014 Archives
Some things have come up that I need to take care of. I'm going to be doing that this week. I'll be back next Monday to discuss the results of SCOTUS' "long conference," where they get to decide what I'll write about over the next nine months -- and believe me, that's a primary consideration for them -- as well as the recent Ohio Supreme Court decision on "all or nothing" defenses, plus a whole bunch of other stuff that I could have written about this week but won't.
I once had an appeal from a weapons under disability conviction where I was asked in oral argument why I hadn't raised as an assignment of error that the defendant was prejudiced by admission of evidence that he had a prior conviction, which gave rise to the disability. That's not the only situation where that problem arises. To prove a felony domestic violence, you've got to show the prior conviction for domestic violence. It works the same for felony DUI's and even telephone harassment: the jury finds out that you've been convicted of another crime, in the latter cases exactly what you're currently charged with. Good luck with that.
I had to explain that that's the way the law works: the prior conviction is an element of the crime, and the State has to prove it.
Nodding off. I've mentioned before that there's a whole body of law on sleeping jurors, and the 2nd District added to it a couple weeks back in State v. Montgomery. Not only must a defendant show that the juror missed "critical portions" of the trial because of a visit by that candy-colored clown they call the Sandman, but "a defendant's petition for post-conviction relief must fail when the defendant had knowledge during his trial of juror misconduct, but failed to raise the misconduct at the trial level or in his direct appeal." It also helps if there were actually sleeping jurors, which the trial judge in Montgomery's case found there weren't.
Back in May, the 8th District in State v. Walker found the evidence of prior calculation and design insufficient for an aggravated murder conviction, and modified it to simple murder. The State squawked to the Supreme Court, claiming that the panel adopted the inferences it felt persuasive, rather than leaving that task up to the jury. The Supreme Court hasn't yet decided if it will take the case, but the argument's had some resonance up here anyway. Last week, in State v. Pointer, the panel adopted the State's position with a vengeance.
Still two weeks until SCOTUS swings into action, no new decisions from the Ohio Supreme Court, and I haven't looked at appellate decisions in almost a month, so let's do that.
In State v. Smith, the defendant, a Megan's Law sex offender, claims he should be allowed to withdraw his plea to failure to notify of a change of address because the State had to show recklessness as the mens rea. Not so, says the 1st District: it's a strict liability offense. The decision is limited to Megan's Law, but the opinion cites an 8th District decision which held that the same applied to a violation of the Adam Walsh Act.
A picture may be worth a thousand words, but a video is worth a lot more.
Even the pictures weren't that bad in the worst domestic violence case I've ever handled that didn't result in a death. The guy had stomped the woman's head and broke six bones in her face, but the only pictures they took were right after the incident, and she was so bandaged up, you couldn't really see much. I've seen bad pictures, though. You can do a lot of damage to a person with your fists. You can do much more with a lamp or a baseball bat.
But nothing brought home the base viciousness of the crime like the roundhouse left that Ray Rice launched at his fiancée in that hotel elevator.
This is the kind of morning I had. First, I forgot to set the alarm -- I was working on an appeal from home the last several days -- and I got up late. Then when I got downtown, I realized I'd left my cellphone at home, so I had to go back and get it. And then all four tires on my car went flat on the way back to the office.
Okay, the tires part isn't true, but the rest is, and the upshot is that I got to the office an hour late. I've got a full slate of stuff this morning, and this afternoon I'm doing a seminar. There are two appeals and a motion that I absolutely, positively have file today -- if it weren't for the last minute, I'd never get anything done -- and the only time I have to do that is first thing in the morning, which I should get to doing instead of explaining to you why there's not going to be a post (besides this one) today. But there will be one tomorrow, in which I discuss race and gender in America, and also provide penetrating insights on the Federal Reserve's announcement yesterday that it would keep its interest-rate guidance intact.
See you there.
I was interested to see how the 8th District would handle consecutive sentencing in the wake of the Supreme Court's decision a couple months back in State v. Bonnell. As my legions of faithful readers know, the 8th has been pretty good in demanding strict compliance with the requirement that a judge make the statutory findings under RC 2929.14(C)(4) before imposing consecutive sentences. Bonnell, though, seemed to signal a more lenient approach, concluding that the judge's statement that Bonnell had "shown very little respect for society and the rules of society" was equivalent to the finding that consecutive sentences are necessary to protect the public from future crime and punish the offender.
In the first post-Bonnell decision, the 8th did take a more relaxed view, then spines stiffened the following week in State v. Greene, the panel concluding that the judge's statement "it is not a disproportionate sentence" was sufficient, if "barely" so, for finding that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to danger he poses to the public.
Last week, the court also seemed willing to hold judges' feet to the fire in State v. Brooks, reversing because the judge hadn't made the finding that consecutive sentences weren't disproportionate. Two quick points, then a longer one. It was no big deal; the judge had run a six-month sentence for child endangering consecutive to a ten-year one for attempted murder, so Brooks won't be breaking out the party hats when he gets the decision.
Three weeks of opinions to wade through, and we find a very good search case, a very bad evidence case, and some stuff in between.
Dewanna Buckway falls in between. HB 86 introduced the concept of "mandatory probation": except in certain cases, a judge couldn't send a defendant to prison for a fourth or fifth degree felony if they didn't have a prior felony record. Buckway pleads guilty to obstructing justice, a 5th degree felony, and her only prior conviction is for aggravated trespass, a misdemeanor. The judge sends her to prison for six months anyway. The panel in State v. Brockway decides that since her lawyer didn't object at the sentencing - Brockway's brief says the lawyer did, and cites the transcript page - it can only be reviewed for plain error. That shouldn't really matter; that requires you to show that a manifest injustice occurred, and sending someone to prison who shouldn't be sent to prison seems to clear that bar. The panel decides to the contrary, and I'd be more upset about this, except Buckway was granted judicial release, so that pretty much moots the whole thing.
Sometimes, my writing gets me into trouble. In addition to the blog, I do a weekly post on the listservs of the local and state criminal bar associations on the 8th District's decisions. Back in February of 2013, my summary of State v. Tate was that the prosecutor forgot to ask any of the three witnesses to identity Tate, and so the court tossed it for insufficient evidence. Word gets around, and the prosecutor made it a point to tell me the next week that I'd gotten it all wrong: there was plenty of evidence of identification, which even the defendant didn't dispute. The Supreme Court took the case, and as I detailed in my post about the oral argument, it turns out the prosecutor was right: there was abundant evidence of that if a crime was committed - the issue that was really in dispute - Tate was the one who did it. The Supremes concluded the same a couple weeks back, by a narrow 7-0 margin. The prosecutor sent me an email about the decision, and to avoid further such problems in the future, I've resolved to read the entire trial transcript of any decision I write about.
Some of my fondest childhood memories were fishing with my father.
Yeah, right. I know a lot of people like it, but it bored me out of my skull. You ever see me with a fishing pole, head down to probate court and get me a guardian, because I've clearly lost my mind.
I am on vacation, though. Well, actually, I'm on vacation from here for a couple weeks. I'm going away for a long weekend. (It was supposed to be a long week, but that didn't happen.) I'll be back here on the 15th. See you then.
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